The Arizona Supreme Court issued an opinion clarifying Arizona Law addressing the waiver of statutory protections in loan documents.  The case specifically addresses when parties can waive their rights to a fair market value determination under A.R.S. § 33-814 following the trustee’s sale of real property.  A.R.S. § 33-814(A) entitles judgment debtors, including Guarantors, to have the fair market value of the property credited against the amount owed on the note following a Trustee’s Sale. Many times the loan documents include a waiver of the right to have the fair market value hearing.  The Arizona Supreme Court held that parties may not prospectively waive this statutory protection.

In this case the Borrower borrowed $15.6 million from a Lender in February 2007 to construct an office building. The promissory note was secured by a deed of trust and payment was guaranteed by four individuals. The loan documents all expressly waived the fair market value provision of A.R.S. § 33-814(A).

Borrower defaulted on the loan in June 2009, when a trustee’s sale was conducted when nearly $11.2 million remained outstanding. The Lender assigned its rights under the loan and deed of trust to a related third party.  The property was acquired the trustee’s sale for the credit bid of $6.15 million. The Borrower and Guarantors were sued for a deficiency judgment of approximately $5 million plus interest. Borrower and the Guarantors filed counterclaims and a third-party claim for breaching of the implied covenant of good faith and fair dealing. The Lender and its related third party moved to dismiss the claims on the ground that Borrower and the Guarantors waived their right under A.R.S. § 33-814 to a fair market value determination. The Superior Court denied the motion, ruling that the parties could not waive this statutory right. Following an evidentiary hearing, the court found the fair market value of the property to be $12.5 million and no deficiency existed because the property’s fair market value exceeded the amount owed on the note.

The Supreme Court provided a thorough analysis of when and under what circumstances it will authorize courts to uphold waivers of statutory rights.  The court looked to its past decisions discussing when parties may waive statutory rights.  Generally, when rights are granted solely for the benefit of individuals, those waivers were upheld, but rights enacted for the benefit of the public may not be so easily waived.  The key inquiry, as stated by the Supreme Court, is whether an identifiable public policy clearly outweighs the interest in enforcing prospective waivers of particular statutory provisions.

As applied to this case, the Supreme Court concluded the fair market value provisions, as well as the deed of trust framework, generally acknowledges “Arizona’s long-recognized public policy of protecting debtors”. (Emphasis added).  In line with this public policy, the court confirmed Arizona’s deed of trust framework streamlines the foreclosure process but maintains protections for borrowers and the public. It does this by protecting against artificially increased deficiency judgments. The court repeatedly used the language of “protecting against artificially increased deficiency judgments”.  The court concluded there is an identifiable public policy served by A.R.S. § 33-814(A) that clearly outweighs the interest in enforcing prospective waiver terms, and consequently it held that that such waivers are unenforceable.

Although not discussed in the decision, Judge Mangum at the trial court issued a 21-page minute entry ruling containing findings of fact and conclusions of law regarding the testimony of the appraisers and value of the real property.  A reading of the minute entry offers valuable insight into the thought process of a Superior Court Judge when making a finding.  The trial court found the property was worth as much as the debt and there was no deficiency.  The Lender appealed on a technical argument where the law was not clearly in its favor.  The message from the Supreme Court is clear; the Arizona statutes are in place to protect the public against artificially increased deficiency judgments. 

The Supreme Court vacated the Court of Appeals analysis on waiver, and substituted its own analysis.  The Supreme Court affirmed the Superior Court’s judgment.  The trial court awarded Borrower and Guarantors a combined $335,104.42 in attorney’s fees and costs, additionally, the Supreme Court, on appeal, awarded fees to Borrower and the Guarantors.

The attorneys at Windtberg & Zdancewicz, PLC provide clients with experienced legal representation in all litigation and bankruptcy matters. We are experienced in creditor’s rights prosecuting and defending garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases. If you need assistance with your collection matters, please contact us at (480) 584-5660.

In this digital world electronic signatures are going to be the norm, rather than the exception. Even prior to implementation of the Arizona Electronic Transactions Act there have been cases addressing non-traditional “inked” signatures. Those cases involved a name that was typed on paper and intended by the person to be their signature.

The Act addresses the digital world of electronic signatures. If you purchased a home in the last few years, or obtained a student loan, chances are you e-signed your name to at least one of the documents. The Arizona Electronic Transactions Act applies to any electronic record and electronic signature relating to a transaction. The Act does not apply to a transaction dealing with wills, codicils or testamentary trusts and certain other statutes dealing with the Uniform Commercial Code.

Existing case law is consistent with the Arizona Electronic Transactions Act. A document is “signed” when a person employs “any of the known modes of impressing a name on paper” including “writing, printing, lithographing, or other such mode, provided that same is done with the intention of signing.” Bishop v. Norell, 88 Ariz. 148, 151, 353 P.2d 1022, 1025 (1960) (holding that party’s typed name on a listing agreement qualified as a sufficient signature and the party to be bound so conceded); see generally Restatement (Second) of Contracts § 134 (1981) (defining a “signature” as “any symbol made or adopted with an intention … to authenticate the writing as that of the signer.”).

More recently, the Haywood Securities, Inc. v. Ehrlich court held that a judge’s typed signature on electronically filed judgments complied with civil procedure requirement that an appealable judgment be “signed.” Haywood Securities, Inc. v. Ehrlich, 214 Ariz. 114, 115, 149 P.3d 738, 739 (Ariz. 2007). In Haywood, Plaintiff tried to have the previous judgment dismissed because pursuant to Rule 58(a), “All judgments shall be in writing and signed by a judge.” The Supreme Court of Arizona disagreed holding that nothing in Rule 58(a), or our case law mandates that a judge manually sign an order for it to be a valid judgment. As long as a judge intends that his or her electronic signature formalizes a written judgment, the document complies with Rule 58(a). Therefore, Arizona recognizes electronic signatures as valid and binding.

While Arizona recognizes electronic signatures, there are several requirements that need to be fulfilled in order for the signature to be recognized as valid and binding. To have a valid and binding electronic signature, the signer must complete the requirements of A.R.S. § 44-7031, as well as overcome the presumptions of A.R.S. § 44-7033.

A.R.S. § 44-7031 sets the literal requirements to create a valid binding electronic signature in Arizona. A signature is a secure electronic signature if, through the application of a security procedure, it can be demonstrated that the electronic signature at the time the signature was made was all of the following:

1. Unique to the person using it.
2. Capable of verification.
3. Under the sole control of the person using it.
4. Linked to the electronic record to which it relates in such a manner that if the record were changed the electronic signature would be invalidated.

A.R.S. § 44-7033 refers to the presumptions that arise from an electronic signature. Under Arizona law, it is presumed that:

(1) The electronic record has not been altered since the specific time to which the secure status relates,
(2) There is a rebuttable presumption that the secure electronic signature is the electronic signature of the party to whom it relates and,
(3) In the absence of a secure electronic record or a secure electronic signature, there is no presumption of validity or forgery.

A record or signature in electronic form cannot be denied legal effect and enforceability solely because the record or signature is in electric form. A.R.S. § 44-7007(A). Further, a contract formed by an electronic record cannot be denied legal effect and enforceability solely because an electronic record was used in its formation. A.R.S. § 44-7007(B).

If the electronic signature meets the requirements of A.R.S. §§ 44-7001-7051, the electronic signature should be valid and binding in Arizona.

The attorneys at Windtberg & Zdancewicz, PLC provide clients with experienced legal representation in all litigation and bankruptcy matters. We are experienced in creditor’s rights prosecuting and defending garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases. If you need assistance with your collection matters, please contact us at (480) 584-5660.

The mere occurrence of a trustee sale, predicated on an allegation of a breach, does not constitute a judicial determination that the borrower has breached the note.

Morgan AZ Financial, LLC v. William Gotses, 235 Ariz. 21 (App. 2014)

This case dealt with promissory notes secured by deeds of trust on undeveloped real property in Flagstaff, Arizona. There was a default by the borrowers and the lender initiated a trustee sale. The borrowers did not seek to enjoin the sales. The sales were completed and the lender obtained title to the real property.

Following the trustee’s sale, the lender commenced a deficiency action against the borrowers. One borrower argued that certain defenses rendered the notes void and unenforceable. The lender then moved for summary judgment under A.R.S. § 33 811(C), arguing the defenses relating to the enforceability of the notes were waived because the borrower failed to enjoin the trustee sales. The superior court granted the motion for summary judgment filed by the lender, overruling the defenses.  The borrower appealed the trial court. The appellate court, reversed the trial court, and held that common-law defenses to a borrower’s liability under a note generally survive a trustee’s sale and may be asserted in a deficiency action.

The lender argued that the borrower who does not enjoin a trustee sale loses his right to litigate any defenses to potential post-sale deficiency action. The appellate court concluded the lender’s contention was unsupported by the plain language of the statute and inconsistent with the process of purpose of non-judicial foreclosures. The court held that the purpose of a non-judicial trustee sale is to allow the lender to recover the property or value of the property outside of the judicial process; but the action to enforce a post-sale deficiency must be brought in court under the protections of the court process.  The appellate court, reversing the trial court, remanded the case to allow the borrowers to litigate their defenses to the deficiency action.

The most significant take away from this case is the mere occurrence of a trustee sale predicated on an allegation of a breach does not constitute a judicial determination that the borrower has breached that note. Consequently, issues surrounding the enforceability of a note may be litigated in the subsequent deficiency action.

If you are faced with deficiency litigation, hire counsel that know and understand the legal process.

The attorneys at Windtberg & Zdancewicz, PLC provide clients with experienced legal representation in all litigation and bankruptcy matters. We are experienced in creditor’s rights prosecuting and defending garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases. If you need assistance with your collection matters, please contact us at (480) 584-5660.

In a previous post we discussed collecting from both spouses when one spouse incurs a debt in Arizona. What happens when a judgment creditor obtains a foreign judgment, and wants to collect the judgment in Arizona? First, the judgment must be domesticated in Arizona. If the judgment was obtained against a married person in a separate property State, and the creditor wants to collect the judgment in Arizona, the creditor must take care to avoid common mistakes in Arizona judgment domestication actions.

In many cases, Arizona law allows a judgment creditor to domesticate a foreign judgment against both spouses, even if the foreign judgment was entered against only one spouse. In Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Greene, Charles Greene signed a promissory note that was governed by the laws of New York. When he signed the note, both Charles and his wife were residents of Texas. When Charles defaulted on the note, National Union made payment and afterwards filed suit against Charles in New York, where judgment was entered against Charles. His wife was not served, did not become a party to the suit, and was not named in the judgment (which would have been required had the lawsuit been filed in Arizona). Thereafter, Charles and his wife moved to Arizona and National Union sought to enforce the judgment in Arizona.

In Greene, the court held that Arizona may not impress Arizona procedural law upon a foreign judgment, and cannot refuse to recognize a foreign judgment merely because Arizona law was not followed in obtaining it. Therefore, Arizona could not require the creditor to name the spouse in the New York proceeding, even though joining the spouse would have been required in Arizona. Since New York did not require (or even allow) the creditor to join the spouse, due process did not require joining both spouses in New York to obtain a valid judgment against the marital community in Arizona. The creditor was able to collect the foreign judgment against the Greens’ community property, even though the New York judgment was entered only against Charles.

If you are a creditor with a foreign judgment against a married person, and you wish to domesticate and enforce the judgment in Arizona, you must follow Arizona procedural requirements to enforce the judgment against the marital community in Arizona. Without providing due process to the debtor’s spouse, the domesticated judgment may be unenforceable.

Experienced judgment domestication attorneys will be familiar with the steps required to enforce a foreign judgment against a debtor’s spouse, and will know how to give you the best chance at collection. If you need a judgment domesticated in Arizona, or are facing a creditor domesticating a foreign judgment against you, you should hire a knowledgeable attorney with experience dealing with these issues.

The attorneys at Windtberg & Zdancewicz, PLC provide clients with experienced legal representation in all litigation and bankruptcy matters. We are experienced in creditor’s rights prosecuting and defending garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases. If you need assistance with your collection matters, please contact us at (480) 584-5660.

The non-judicial foreclosure process in Arizona is known as a Trustee’s Sale. The requirements to complete a valid trustee’s sale fully set forth in statute. For those professionals that are statutorily identified as being qualified to act in a trustee capacity, the process is a “paint by numbers” procedure.

A Trustee’s Sale is, by statutory design, meant to be quick and relatively simple. The entire Trustee’s Sale process occurs over a period of 91 days. Generally, if the Trustee follows the statutory requirements, a valid sale will occur unless another party takes action to stop the sale before the sale occurs. The basic timeline for a trustee’s sale is below.

Day 1
The Trustee records the Notice of Trustee’s Sale.

Day 5
The Trustee mails the Notice of Trustee’s Sale and Statement of Breach to those listed in the Deed of Trust (and those defined by statute).

Day 30
The Trustee mails the Notice of Trustee’s Sale and Statement of Breach to those in the Deed of Trust and those that have an interest in the Property.

Usually between day 20 and day 69
The Notice of Sale is posted at the property being sold and at the Superior Court Courthouse at least twenty days before the sale at (1) some conspicuous place on the property to be sold (if it can be done without a breach of the peace), and (2) at the places in the county courthouse provided for the posting of public notices.

Usually between day 20 and day 79
The Notice of Trustee’s Sale is published in a newspaper of general circulation in the county in which the trust property is located. The Notice must run once a week for four consecutive weeks with the date of last publication not less than ten days prior to the sale.

Day 91
The Trustee sells the property at the Trustee’s Sale.

Usually within 10 days after the sale
The Trustee’s Deed is recorded.

Once the sale occurs and the Trustee’s Deed is executed and delivered, the property will be vested in the party that purchased at the Trustee’s Sale, either the beneficiary or a third party.

There are many “behind the scenes” actions being taken by the trustee and their staff, to ensure that there is full statutory compliance. From the “outside looking in” perspective, the above timeline describes what will happen.

The statutes define many other items that must be completed. For example if a property owner believes the Trustee’s Sale is invalid, and the borrower wants to ‘stay’ a Trustee’s Sale, the stay must be obtained at least one business day prior to the scheduled Trustee’s Sale. If no stay is obtained, and the sale occurs, the issuance of the Trustee’s Deed brings with it a statutory presumption that all requirements to complete the sale were properly completed. If you are facing a Trustee’s Sale, retain counsel without delay. Time passes quickly, and if you want to stop the process, you must move promptly.

The attorneys at Windtberg & Zdancewicz, PLC provide clients with experienced legal representation in all litigation and bankruptcy matters. We are experienced in creditor’s rights prosecuting and defending garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases. If you need assistance with your collection matters, please contact us at (480) 584-5660.

What is notice? When it comes to domesticating foreign judgments in Arizona, “notice” is governed by the Uniform Enforcement of Foreign Judgments Act (the “Act”). The Act simply requires that notice of the lodging of a foreign judgment must be sent to the judgment debtor’s last known post office address. A.R.S. § 12-1703(A) and (B). Actual notice is not required. The post-judgment notice requirements are not the same as the due process protections set in statutes when a case is filed.

The Arizona Court of Appeals addressed the issue of sufficiency of notice in Douglas N. Higgins v. Songer, 171 Ariz. 8 (App. 1991). The Judgment Creditor’s attorney mailed the statutory notices to the last known address of the Judgment Debtor. Those mailings were returned “undeliverable as addressed.” The Judgment Creditor’s attorney then performed additional research and mailed a letter to the Judgment Debtor advising him of the sister-state judgment, not the domesticated judgment. The Judgment Debtor received the letter.

The Judgment Debtor filed a motion to dismiss, and the Judgment Creditor then mailed the statutory notice to the correct address. The trial court took the bait, and dismissed the domestication. The appellate court reversed the trial court, and the domestication stood. The appellate court stated:

The trial judge apparently assumed that the initial notice of filing the foreign judgment was defective because it did not contain the debtor’s actual post office address, and she apparently believed that the attempts at amendment came too late and that she therefore lacked jurisdiction to do anything but dismiss. The debtor’s argument in support of this conclusion is flawed. A notice of filing a foreign judgment is not a pleading. See Rule 7(a), Arizona Rules of Civil Procedure, and Romo v. Reyes, 26 Ariz.App. 374, 375, 548 P.2d 1186, 1187 (1976). Nor is a motion to dismiss a claim a responsive pleading within the meaning of Rule 15(a), Arizona Rules of Civil Procedure. Graham v. Goodyear Aerospace Corp., 120 Ariz. 272, 273, 585 P.2d 881, 882 (1978). Accordingly, even if the original documents were defective, we can see no reason why the amended notice of filing foreign judgment, amended affidavit, and amended proof of mailing should have been stricken. Given that conclusion, at the very least, the Michigan judgment was properly domesticated as of the time that the amended affidavit and notices were filed. The trial judge had jurisdiction of the matter and was under no compulsion to grant, and indeed should not have granted, the motion to dismiss. We turn to the more basic question whether the initial notice of filing was defective.

The court held the first notice satisfied the statute because the creditor mailed the papers to the residential address it obtained from the Judgment Debtor’s former spouse. The court reasoned as follows:

The parties have not cited, and we have not found, any case that deals with whether a creditor is required to exercise due diligence in discovering the debtor’s last known post office address or whether a creditor, in the absence of information to the contrary, may presume that mail addressed to a residence will be delivered. In our opinion, given that constitutional considerations require no notice of post-judgment proceedings, we believe that the judgment creditor in this case satisfied the demands of the statute.

The court decided that basic due process was satisfied when notice and an opportunity to defend the action was afforded in the sister state. The domestication of the foreign judgment is a post-judgment proceeding and a prelude to execution on the judgment, for which no personal notice is required. The Court concluded that the constitution requires little in regard to post-judgment notice, and that the legislature did require a judgment creditor to do any more than notify the debtor at their address where they get mail, either a residence or post office box, that the sister-state judgment was being domesticated in Arizona.

For debtors, the lessons from this case are: (1) keep your address up to date if you want to get notices, and (2) when you get notices, they are important; don’t stick your head in the sand. For creditors, improper notice is one of many issues that can arise when domesticating a judgment in Arizona. Be sure to hire an experienced attorney to assist you.

The attorneys at Windtberg & Zdancewicz, PLC provide clients with experienced legal representation in all litigation and bankruptcy matters. We are experienced in creditor’s rights prosecuting and defending garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases. If you need assistance with your collection matters, please contact us at (480) 584-5660.

When a judgment creditor obtains a judgment in another state against a married person, the judgment can be domesticated in Arizona, and if executed correctly, the domesticated judgment can enforced in Arizona against both spouses. One of the issues that can arise in Arizona judgment domestications occurs when the judgment was based on a guaranty that was only signed by one spouse.

Arizona is a community property state. In Arizona, either spouse may contract debts or otherwise act for the benefit of the community, and the debt created by the spouse is going to be both an individual debt for the spouse that incurred it, and a community debt. When the debt is deemed a community debt, community assets can be attached by the creditor to satisfy the debt.

However, if the debt is a separate debt of the spouse incurring the debt, then community property cannot be used to satisfy the debt. Judgment creditors who want to domesticate a foreign judgment in Arizona need to know the nature of the judgment to determine if the debt is a separate debt or a community debt.

A.R.S. § 25-214(C)(2) states that when the instrument is a guaranty, the community will be bound only upon the signature of both spouses. So if only one spouse signs the guaranty, then the spouse signing the guaranty is liable to repay the obligation, but, the community is not bound to repay the debt. This law differs from most states, which do not require both spouses to sign a guaranty. So what if the guaranty was signed outside of Arizona, before the couple moved to Arizona, and a judgment was entered in another state? If both spouses did not sign the guaranty, and the judgment is domesticated in Arizona, then there will not be community liability.

The Arizona Court of Appeals has analyzed whether A.R.S. § 25-214(C)(2) is procedural or substantive in nature. The Appellate Court determined the legislature clearly intended that A.R.S. § 25-214(C)(2) protects the substantive rights of the non-signing spouse. The substantive law creates and defines rights that bars collection of the guaranteed debt from community property when only one spouse signs the guaranty. Under Arizona law, the community is liable for what would have been a community obligation had it been incurred in Arizona. So, it is critical to analyze the nature of the debt to determine if it can be enforced in Arizona against community property. A.R.S. § 25-214(C)(2) states both spouses must execute a guaranty to bind the marital community.

Even if the judgment is only enforceable against one spouse’s separate property, it often makes sense to domesticate the judgment in Arizona. Experienced judgment domestication attorneys will be familiar with this common trap, and will know what steps to take to give you the best chance at collection. If you need a judgment domesticated in Arizona, or are facing a creditor domesticating a foreign judgment against you, you should hire a knowledgeable attorney with experience dealing with these issues.

The attorneys at Windtberg & Zdancewicz, PLC provide clients with experienced legal representation in all litigation and bankruptcy matters. We are experienced in creditor’s rights prosecuting and defending garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases. If you need assistance with your collection matters, please contact us at (480) 584-5660.

In Arizona, when an individual signs a contract, that person becomes personally liable to perform the obligations created by the contract. There are many different types of contracts, for example, retail installment contracts, personal guarantees, leases, or credit agreements, just to name a few. A breach of the contract may in all likelihood result in a lawsuit.

There are different factors that should go into filing a lawsuit, and defending a lawsuit. One of the practical factors is, if successful, will the creditor collect the damages arising from the breach of the contract? Additional factors include: was the person married at the time the contract was signed, and what type of contract was signed. The equation gets a bit more complicated if the person was married when the contract was signed and is now divorced, or if the contract was signed outside of Arizona. For single persons who sign the contact in Arizona, the answer to the question is easy; all non-exempt assets of the debtor are available for repayment.

For married couples, it is important to recognize that Arizona is a community property state. In Arizona a spouse can hold both separate property and community property. There is a presumption that the marital community is liable for the obligations incurred by each spouse during the marriage. When both spouses sign the contract, the law gets clearer. However, if only one spouse signs the contract, there are exceptions to the general rule that the community property is liable.

Arizona Revised Statute § 25-215 defines when community property or separate property can be used to satisfy community and separate property debts. A.R.S. § 25-215(A) states: Separate property of a spouse shall not be liable for the separate debts or obligations of the other spouse, absent agreement of the property owner to the contrary.

A.R.S. § 25-215(B) states: The community property is liable for the premarital separate debts or other liabilities of a spouse, incurred after September 1, 1973, but only to the extent of the value of that spouse’s contribution to the community property which would have been such spouse’s separate property if single.

A.R.S. § 25-215(C) states: The community property is liable for a spouse’s debts incurred outside of this state during the marriage which would have been community debts if incurred in this state.

A.R.S. § 25-215(D) states: Except as prohibited in section 25-214, either spouse may contract debts and otherwise act for the benefit of the community. In an action on such a debt or obligation the spouses shall be sued jointly and the debt or obligation shall be satisfied: first, from the community property, and second, from the separate property of the spouse contracting the debt or obligation.

The law appears to be fairly straightforward. There are issues that must be analyzed whether you are a creditor or a debtor. For example, if only one spouse guarantees a debt incurred during the marriage in Arizona, the creditor’s enforcement rights are limited. It may be the creditor is entitled to get a judgment, but that judgment is only enforceable against the separate property of the spouse that guaranteed the debt.

If the debtor has no separate property assets, the creditor will have to wait until such time separate property assets are available. When will separate property assets be available? Separate property assets may never be available. Or separate property assets may become available upon the death of one of the spouses, or, upon the dissolution of the marriage. The message should be clear. There is an art to litigation, hire an experienced attorney whether you are a creditor or a debtor.

The attorneys at Windtberg & Zdancewicz, PLC provide clients with experienced legal representation in all litigation and bankruptcy matters. We are experienced in creditor’s rights prosecuting and defending garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases. If you need assistance with your collection matters, please contact us at (480) 584-5660.

In an earlier post, Fraudulent Transfers and Creditors’ Rights to Collect, we discussed collection against an insolvent debtor. But what about a savvy future debtor who takes action to make sure a future debt cannot be collected?

If an Arizona creditor is already owed money, it is not necessary to show fraudulent intent to prove fraudulent transfer. However, a creditor is also entitled to a finding of fraudulent transfer for a transfer that occurred before the debt, if the transfer was made “with actual intent to hinder, delay or defraud any creditor of the debtor.”

There are several factors that may be considered to determine actual intent, including:

1. The transfer or obligation was to an insider.
2. The debtor retained possession or control of the property transferred after the transfer.
3. The transfer or obligation was disclosed or concealed.
4. Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit.
5. The transfer was of substantially all of the debtor’s assets.
6. The debtor absconded.
7. The debtor removed or concealed assets.
8. The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred.
9. The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred.
10. The transfer occurred shortly before or shortly after a substantial debt was incurred.
11. The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.

These factors, known as “badges of fraud,” can be used to prove your debtor took steps before the debt to make sure you wouldn’t collect. If you encounter any of these red flags when attempting to collect, an experienced attorney can help you recover your debt despite a debtor’s careful planning.

The attorneys at Windtberg & Zdancewicz, PLC provide clients with experienced legal representation in all litigation and bankruptcy matters. We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases. If you need assistance with your collection matters, please contact us at (480) 584-5660.

“But it’s my kids’ money!”  This refrain may be common, but it’s not necessarily accurate when it comes to a debtor talking about money in a 529 College Savings Account.  When the accounts are held “FBO” a child, courts are likely to find that money belongs to the debtor, not the child.

For example, in the case of Addison v. Seaver, the debtor claimed $22,000 in 529 accounts was owned by his children, not his bankruptcy estate. The bankruptcy trustee objected, and the bankruptcy court found that the 529 Accounts were property of the debtor’s bankruptcy estate. The Bankruptcy Appellate Court affirmed the ruling. The issue was then appealed to the United States Court of Appeals, where the debtor argued “that because he established the accounts for the benefit of his children, he had no legal or equitable interest in the accounts.”

The Court of Appeals reviewed Federal law regarding Section 529 Accounts, and found that the debtor was still listed as the owner of the account, and that his children were merely beneficiaries. The Court found that the owner is able to change the beneficiaries or request distributions from the account (subject to tax penalties) and, therefore, the funds remain the property of the owner of the account.

Amendments to the Bankruptcy Code provided exclusions for 529 Accounts, under certain circumstances, which restrict the inclusion of those funds as part of a bankruptcy estate. However, for the purposes of judgment collection, 529 Accounts are likely to be found to be property of the debtor. Dependent upon state-law exemptions, a creditor may be able to recover money held in 529 College Savings Accounts. An experienced attorney can help you discover if your debtor is holding funds in a 529 Account, and help you collect what you are owed.

The attorneys at Windtberg & Zdancewicz, PLC provide clients with experienced legal representation in all litigation and bankruptcy matters. We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases. If you need assistance with your collection matters, please contact us at (480) 584-5660.